ACLU v. Clapper – Challenge to NSA Mass Call-Tracking Program

The ACLU has filed a lawsuit challenging the constitutionality of the National Security Agency’s mass collection of Americans’ phone records. The complaint argues that the dragnet, justified by the Patriot Act’s Section 215, violates the right of privacy protected by the Fourth Amendment as well as the First Amendment rights of free speech and association.
The complaint also charges that the program exceeds the authority that Congress provided through the Patriot Act. The lawsuit seeks to end the mass domestic spying and have all of the collected data deleted. In December 2013, a federal judge denied the ACLU’s motion for a preliminary injunction and granted the government's motion to dismiss, and we appealed. Oral argument took place on September 2, 2014, at the Second Circuit Court of Appeals in Manhattan.

On June 5, 2013, The Guardianrevealed details of the NSA’s domestic spying activities, including a secret order from the Foreign Intelligence Surveillance Court (FISC) to Verizon Business Network Services. The order required the company to turn over on “an ongoing daily basis” phone call details including whom calls are placed to and from, when those calls are made, and how long they last. This information, known as metadata, can reveal intimate details about our private lives. The order is part of an ongoing program that continues today. On June 11, the ACLU and NYCLU, both of which are current or recent Verizon Business customers, filed the lawsuit.

Because the NSA’s aggregation of metadata constitutes an invasion of privacy and an unreasonable search, it is unconstitutional under the Fourth Amendment. The call-tracking program also violates the First Amendment, because it vacuums up sensitive information about associational and expressive activity.

The Patriot Act’s Section 215 – also known as the “business records” provision – allows the FBI to obtain secret court orders from the FISC compelling third parties to produce “any tangible thing” that is “relevant” to foreign intelligence or terrorism investigations. In addition to the constitutional claims above, the lawsuit charges that the executive branch’s use of Section 215 goes far beyond what the statute permits. Whatever Section 215’s “relevance” requirement might allow, it does not permit the government to cast a seven-year dragnet sweeping up every phone call made or received by Americans.

The ACLU is also currently litigating a Freedom of Information Act lawsuit seeking documents on the government’s legal interpretation and use of Section 215, and has also filed a motion with the FISC asking it to release its secret opinions authorizing the NSA program.

The ACLU's 2008 lawsuit challenging the constitutionality of the FISA Amendments Act, which authorized the so-called “warrantless wiretapping program,” was dismissed 5–4 by the Supreme Court in February 2013 on the grounds that the plaintiffs could not prove that they had been monitored. The ACLU does not believe the issue of standing to be a problem in ACLU v. Clapper because of the FISC order showing that the NSA is collecting the telephone records of all Verizon Business customers – including the ACLU.